England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10 March 2016

1. MR JUSTICE JAY: This is a renewed application brought under section 288 of the Town and Country Planning Act 1990 whereby the Claimant, Singhal UK Ltd, seeks to challenge the inspector's decision promulgated on 25 November 2015. That decision was to refuse to grant approval pursuant to the relevant provisions of the General Permitted Development Order 2015 ("the GPDO") for the conversion of an agricultural farm into a dwelling and associated development.
2. In terms of the essential factual background, what happened here is that in July 2010 the Local Planning Authority, that is to say the London Borough of Bromley, granted planning permission at this property which was in New Barn Lane, West Holme, Kent for:

i. "Barn for storage of agricultural machinery, hay, feed and accommodating live stock."

ii. There were a number of conditions attached to the planning permission, the most relevant of which for present purposes is condition 4 which provided:

iii. "The building shall be used for the purposes stated in the application or for agricultural use and for no other purpose."

3. A reason was given for that condition. Mr Bhupendra Singhal, who appears for the Claimant in person today, seeks to found part of his argument on the reason given for condition 4, but in my judgment, that seeks impermissibly to go behind the condition. At this stage, we are not concerned with the reasons for it. We are concerned with what, as a matter of construction, it means.
4. The issue for the inspector to decide in a nutshell is whether condition 4 and in particular the phrase "and for no other purpose" excluded rights under the GPDO because if it did, then the application before the inspector, or rather on appeal, had to be refused; but if it did not, the application fell to be considered, on my understanding, on the merits.
5. The inspector in a relatively brief decision concluded, having regard to relevant authority, that GPDO rights were excluded. In his short reasons refusing permission, Collins J agreed with the inspector's approach.
6. Mr Singhal by his skeleton argument and oral presentation really advances two arguments before me. First of all, he seeks to resurrect his main argument which failed before Collins J. He submitted, with reference to some authority, that the relevant condition, condition 4, did not have the effect of excluding GPDO rights since it did not refer in terms to such rights and in any event, the jurisprudence relied on by the Secretary of State relates to different sorts of rights and not rights under the GPDO.
7. It was that submission, of course, which Collins J dealt with. However, Collins J did not deal with a second submission which seems to me to be a subsidiary submission, but it is clearly advanced before me today by Mr Singhal. To be fair to him, it is mentioned in the papers as a submission. Therefore, I understand his grievance that Collins J has not dealt with it. So it falls to me now to deal with it.
8. The way the submission runs is as follows: pre-commencement conditions going to the heart of permission must be complied with. Otherwise, the building is unlawful. The relevant condition, condition 4, falls away if the building is unlawful. That is the essence of the case being advanced by the Claimant today. In support of it, he relies on various pages in the bundle, in particular page 50 which set out, on my understanding, his case; page 71, which referred to the Local Planning Authority's position; and pages 101 and 102 which sets out an opinion of Mr Richard Harwood QC.
9. That, of course, is not the Claimant's principal contention at all, but it is his submission that it was nonetheless there on the papers. The inspector should have dealt with it. His failure to deal with it gives him an appeal right under section 288.
10. Turning now to my analysis of these two submissions, it seems to me that the first ground is not arguable and that Collins J was correct to dismiss it. The words "and for no other purpose" are, in my judgment, clear. It is not a question of implying anything into condition 4. It is a question of construing them in context. They clearly exclude, in my judgment, GPDO rights and/or rights under different similar provisions such as the Uses Class Order. That is the view certainly of Ouseley J in the Rugby Football Union case and it is not a view which is contradicted by any other relevant authority.
11. I see no merit in the point that the implied exclusion of the GPDO does not operate because there is no express reference to the GPDO. The fact remains that the wording of this clause could not be clearer.
12. The second point initially caused me some concern since I was not wholly convinced that I had understood it. It does appear that Collins J may have overlooked it or he may have thought that it did not deserve mention in his short reasons for refusing permission. Given my concern about that point, I asked Miss Clare Parry, appearing for the Secretary of State, to explain it to me and she has now clearly done so.
13. What the Local Planning Authority were saying at page 71 of the bundle, paragraph 6.7 of its written representations, was not that the pre-commencement conditions had been discharged, but rather that there may be some doubt on the lawful status of the building. They were not advancing any positive case. They were just expressing a modicum of dubiety.
14. Mr Richard Harwood QC's opinion is to like effect since the relevant part of it is phrased conditionally:

i. "If the barn was not constructed lawfully, then the conditions relied upon in the second reason for refusal would not bind the land."

15. The second part of that sentence flows from the first. Miss Parry does not dispute its legal accuracy. However, she is entitled to point out that it is based on a hypothesis which has not been established.
16. The Claimant did not run with this point on any clear basis and did not advance evidence which supported the hypothesis. The matter was left only on the basis upon which we see it in the documents. In those circumstances, in my judgment, it is clear that the inspector was not obliged to grapple with this point. It is a contingent or hypothetical point which was not clearly ventilated.
17. In these written representation appeals, the inspectors have to deal with the main arguments advanced. They do not have to scratch around through the papers, investigate possible hypothetical points and address them in their decisions. That, in my judgment, would place far too onerous a burden upon them.
18. Accordingly, I regret to say that, in my judgment, this application for permission under section 288 of the 1990 act is not arguable, although I should emphasise it was clearly and attractively presented by Mr Singhal for the company. It must, therefore, be refused.
19. MISS PARRY: My Lord, there is one point I make in my skeleton argument in relation to the costs. The effect of the costs order made by Collins J is that the Defendant, as in the Secretary of State, has to pay the Claimant £500. We suggest that he may have got that the wrong way round and would ask that he reverse the order so that --
20. MR JUSTICE JAY: Yes, he clearly did.
21. Do you have anything to say about that? No.
22. THE CLAIMANT: I'll happy to take money from them if they want to --
23. MR JUSTICE JAY: Yes, but I think with respect, Collins J just got it the wrong way round.
24. THE CLAIMANT: Sir, I can only say that I'm happy to pay some costs, but it should be very clear that it is the Defendant's planning inspectors which have issued contract precedents which has put me to this situation. So --
25. MR JUSTICE JAY: Well, no, you have to pay because you have lost, I am afraid. You have to pay modest costs to the Secretary of State in the sum limited to £500. That is very modest because it will have cost them much more to defend this.
26. THE CLAIMANT: That's fine. Thank you.
27. MR JUSTICE JAY: The costs of today; you are not asking for those.
28. MISS PARRY: No.
29. MR JUSTICE JAY: It is not an exceptional case.
30. MISS PARRY: I do not ask for the costs of today.
31. MR JUSTICE JAY: Yes.
32. Is there a right to renew in the Court of Appeal under --
33. THE CLAIMANT: Yes.
34. MR JUSTICE JAY: Well, then I have to tell you what your appeal rights are. You do have a right to renew your application in the Court of Appeal. You will need to check what the time limits are.
35. Are we sure there is an appeal right here?
36. MISS PARRY: Well, sorry, my Lord. My Lord, I am just discussing that point. I believe there is, but I have to confess it is not a point I specifically checked.
37. MR JUSTICE JAY: Right. (Pause)
38. THE CLAIMANT: Sir, I would want to ask something here once you --
39. MR JUSTICE JAY: Well, you cannot really ask me for advice, but I am required under the rules to advise you as to what your appeal rights are.
40. THE CLAIMANT: Sure. If you choose not to answer, that's fine, but at least I want to ask.
41. MR JUSTICE JAY: No, I cannot give advice, I am afraid.
42. THE CLAIMANT: No, I'm not asking for advice, but the position -- can you mention that in order or something of that I can put to the planning inspector and raise this point about building being unlawful because it hasn't --
43. MR JUSTICE JAY: Yes. It is not for me to say. I said something during the course of argument which you can either run with or not. It is actually a request for me to give you advice. I stopped doing that three years ago. I just have to give judgments, I am afraid.
44. THE CLAIMANT: Sure.
45. MR JUSTICE JAY: Where is the permission requirement?
46. MISS PARRY: It is in section 288. I do not think it is in the White Book. My Lord, I am perfectly content to research this point and let Mr Singhal know.
47. MR JUSTICE JAY: Yes, I am very grateful.
48. MISS PARRY: It is not a regular point.
49. MR JUSTICE JAY: Yes.
50. MISS PARRY: I do not think I can deal with it on the hoof.
51. MR JUSTICE JAY: Right.
52. Now, what Miss Parry is going to do for you is find out whether you have a right of appeal to the Court of Appeal.
53. THE CLAIMANT: Okay.
54. MR JUSTICE JAY: What that means in practice is that if you do have a right, you have to ask the Court of Appeal for permission to appeal. You have to lodge your application for permission and your grounds of appeal within a specified time. That specified time Miss Parry will tell you about. It will be a maximum of 21 days, but the specified time is whatever the rules say. Okay? But the further you go on with this, the greater your risk in relation to costs.
55. THE CLAIMANT: I understand.
56. MR JUSTICE JAY: Okay. That, I think, is appropriate.
57. MISS PARRY: Sorry, my Lord. I am being asked whether you would think about the £500 in terms of we did actually make an application for £2,000. I know you --
58. MR JUSTICE JAY: No, I am not going back on what Collins J said --
59. MISS PARRY: I am grateful.
60. MR JUSTICE JAY: -- on that.
61. Thank you very much.
62. THE CLAIMANT: Thank you, sir.